How Democrats could force a Supreme Court vote

ORANGE CITY, Iowa — Chuck Grassley isn’t changing his mind on whether Merrick Garland should be confirmed to the Supreme Court this year. But he’s convinced he will have to vote on Garland anyway.

In a series of town halls in northwest Iowa this week, the Judiciary Committee chairman predicted that Senate Democrats ultimately will use a parliamentary maneuver to force a vote on Garland — a rare move that would amount to a major affront to Majority Leader Mitch McConnell, who controls the Senate floor.

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“There’s nothing we can do about it. Under the rules of the United States Senate, that resolution can be offered anytime,” Grassley told reporters after a Tuesday town hall here, referring to a procedural maneuver called a motion to discharge. “A Republican could offer it.”

The Judiciary Committee chairman candidly acknowledged that the maneuver would put Republicans in a difficult position politically.

“Whenever they take this vote — whether it would be based on confirming the nomination or whether it’s based on a discharge — it’s still going to be a tough vote,” Grassley added.

The idea is not under active consideration by Senate Democrats, who are focused on pressuring Republicans to consider Garland using the standard political channels for Supreme Court nominees. But using a motion to discharge to try to force a vote could ultimately become a nuclear option of sorts for Democrats in the contentious battle to confirm Garland.

This is how it would work: A senator, presumably Minority Leader Harry Reid (D-Nev.), would propose to discharge Garland’s nomination from the Judiciary Committee during an executive session of the Senate.

Republicans would likely object, meaning that the motion would have to lie over one day, under Senate rules. At that point, McConnell could move to table the motion, which would require a simple majority vote to kill it.

Republicans could also block Democrats from trying to enter executive session in the first place, which is otherwise a routine procedure. Democrats would need a simple majority to enter into executive session, but they control only 46 votes.

The motion to discharge ultimately would need 60 votes to succeed, should the Senate reach that point.

“It is fairly common for committees to be discharged from noncontroversial nominations by unanimous consent, with the support of the committee, as a means of simplifying the process,” the Congressional Research Service said last year. “It is far less common for senators to attempt to discharge a committee from a nomination by motion or resolution.”

Technically, it wouldn’t necessarily be a vote on Garland’s merits since it is a procedural maneuver meant to get around the Judiciary Committee. But it would effectively serve as a proxy vote of sorts to gauge where senators, particularly Republicans, stand on Garland’s confirmation.

For anyone aside from the majority leader to try and tee up a nomination on the Senate floor would be a breach of protocol. Using this maneuver would also circumvent a confirmation hearing in the Judiciary Committee, which has been the prime goal for Senate Democrats.

The Judiciary Committee chairman first raised the prospect of a motion to discharge during a town hall session in Rock Rapids, Iowa, where Grassley fielded several questions — many of them critical — about his stance on advancing Garland’s nomination.

“I don’t think there’s any way Republicans can keep from having a vote,” Grassley told the crowd. “If [Senate Republicans] think they’re going to avoid this issue entirely under the rules of the Senate, it is impossible because of the various motions that could be made.”